Fuller v. Metropolian Life Insurance

Hamersley, J.

In the years 1872, ’73 and ’74, the defendant issued a number of participating policies, providing for a dividend upon the policies of each year at the end of ten years. All were term, life and endowment policies for differing periods. Forty-one of these are mentioned in the complaint, one in each count. In the case of each policy mentioned the defendant, at the expiration of ten years from its date, paid the holder the amount promised as an endowment, or, where the policy was for a longer term than ten years, purchased the policy by the payment of its surrender value. The defendant also declared upon all these policies a dividend, and paid the amount to each holder. The assured and insured under each policy gave to the defendant a release acknowledging the receipt of the payments so made, “ in full payment and settlement and discharge of all claims and demands whatsoever.” After the policies had been surrendered and the amounts due upon them thus satisfied, the plaintiffs obtained from the former owners of the policies assignments of all “ claims, demands and causes of action ” against the defendant; and relying upon these assignments have brought this action in their own names.

There is no claim that the defendant has violated any direct promise of the policy. The plaintiffs seek, and seek only, to revise the methods by which the defendant ascertained the dividend it could properly declare and did declare on these policies. For this purpose the plaintiffs have brought their complaint in equity, claiming, first, a cancellation of the receipts on the charge of fraud, and second, an account. It is not necessary to go into the questions as to the remedy by account, the necessity of fraud to set aside the receipts, the validity of the assignments to the plaintiffs, and other matters which have been discussed. The fundamental question is the meaning of the policy of insurance, and the decision of that should end this litigation. The plaintiffs’ counsel rightly claims that the meaning of the reserve dividend plan is “really the sole contest.”

Upon the trial much evidence, documentary and oral, was received to explain the meaning of the policy. The plaintiffs rightly claim that it is a question of law not to be concluded by any finding of fact; and we think its meaning upon the point in controversy clearly appears from its language, read in the light of those settled and commonly known principles of insurance of which we may take judicial notice.

Life insurance is protection given to one person against the damage he may suffer through the death of another. A mere wager on the accident of death is void. In mutual life insurance the protection is furnished by the premiums paid by policy-holders. The duration of any particular life is the merest chance; but the average duration of life from any particular age approaches mathematical certainty. Hence it is possible to calculate the sum which, paid annually by a large number of insured, will satisfy the insurance on those who may die each year. It is the yearly death claims which constitute the cost of insurance that the premiums must pay. This cost for a young man is small, but increases each year until it becomes very large. To avoid the necessity of an increasing premium a uniform premium is calculated, which furnishes at first much more than enough to pay the cost of insurance, and later on is entirely insufficient for that purpose. So the portion of the premium not used for the early-yearly cost is reserved for use when the premium will become insufficient; and is invested so that it may increase at compound interest. It follows that the portion of the premiums applied to pay the yearly cost gradually increases, and that the portion which has been reserved to make up the insufficiency of the premium to pay future cost increases with the aid of interest. The part of the premium intended to meet the cost of insurance, both current and future, is called the net premium; it is the sum paid yearly by each to furnish the stipulated protection for all. But the policyholders must pay not only for the cost of insurance, but also for the expense of management; so to the net premium is added a sum deemed sufficient to pay expenses and provide for contingencies, which is called the loading. In this way the policy-holders pay the sum necessary for the cost of insurance and expense of management. The amount of the net premium is calculated upon the basis of certain tables of mortality and upon the assumption that the company will receive a certain rate of interest upon all its assets; and the amount of the loading is calculated upon a certain assumed rate of expense. Now it may happen that the rate of mortality experienced by the company is less, and the rate of interest actually received is greater, than that assumed, and that the ratio of actual expense is less. In such case the company has in reserve more than enough, with the anticipated annual premiums, to provide for future cost of insurance and management; it has a sum which is not needed for the purposes for which it was paid. This sum is called profits ; it is in fact a surplus resulting from overpayments by policyholders. This surplus is derived from money paid by the insured and received' by the company for a particular purpose, i. e. providing for cost of insurance and expense of management. If not needed for that purpose, it should in equity be returned to the policy-holders. They do not, however, own it, or have any legal control over its distribution; part of it, indeed, is derived from contributions of policyholders who are dead; but the equity is recognized and it is the duty of the company, when a surplus is ascertained, to return such portion as it does not deem proper to keep as a guaranty fund, to the existing policy-holders in equitable (i. e. as nearly as practicable) proportion to their overpayments or contributions. Such return of overpayments, whether in cash, or by application on future premiums, or by increase of the amount insured, is a dividend. This is the meaning of “ dividend,” and the only meaning it has or can have in connection with mutual insurance.

The surplus may also be increased through the failure of some to continue their policies. Where a policy thus lapses the company has in hand the accumulations of a portion of its premiums invested and held.in reserve to supply the insufficiency of future premiums to pay future cost of insurance. (The amount thus held in reserve depends on the judgment of the company in calculating its premiums and the condition of its business, but the statute treats the company as legally insolvent unless its whole reserve is at least equal in amount to the reserve value of all the policies calculated according to a rule established by law. Some companies accumulate a reserve larger than that required by statute; none can have less and remain solvent.) By a lapse the company loses the future premiums, and may lose in other ways ; but it is relieved from providing for future cost of insurance as to that policy and ordinarily, when the reserve fund is good, there is a considerable gain which may increase the surplus. Formerly, whatever gain there was went to increase the surplus; but latterly, in view of the fact that these overpayments are made to provide for future cost of insurance by a policy-holder who up to the time of lapse has theoretically paid his full share of the yearly cost and expenses, the equity of the lapsed policy-holder has prevailed over the equity of those who remain, and he is allowed an equitable portion of these overpayments, and this is called the surrender value of his policy. When a policy lapses the portions of prior premiums invested and held in reserve can no longer be applied to the purpose for which they were made, and, to the extent of the net gain by the lapse, become overpayments, and. in equity should be returned to the holder of the lapsed policy, or to the surplus for the benefit of all. A dividend, therefore, is a distribution of existing overpayments resulting mainly from savings on the annual cost of insurance and expense of management, and in part from savings on the future cost of insurance, i. e. the net gain from lapsed policies.

The company is the absolute owner of its assets, and within the limits of honest dealing has complete control of the time and manner of declaring a dividend on its policies. This time and manner, however, may be controlled by law, by its charter, and by contract. But no contract can make a “ dividend” anything but the return to policy-holders of funds derived from their premiums not used and not needed for the purpose for winch they were paid. So no dividend can be made by a company until after a valuation of its assets and liabilities, showing an excess of assets over liabilities. Unless there is such excess of assets over liabilities, every payment in the company’s hands is needed for the purpose for ‘which it was made; there are no overpayments to be returned, and a dividend cannot legally be made. De Peyster v. American Fire Ins. Co., 6 Paige Ch. 486, 488; Scott v. Eagle Fire Co., 7 id. 198, 202; Lexington Life, etc., Ins. Co. v. Page et al., 17 B. Monroe, 412, 440.

The policies in question insure a life for a term of years, and also agree to pay an endowment at the end of the term. The net premium for the life policy is calculated in one way and that for the endowment in another. A part of the net life premium is used to pay current cost of insurance, and a part is reserved for future cost. The whole net premium of the endowment is reserved to meet the final payment, there being no current cost of insurance. The endowment in these policies is fixed at such a sum that the life premium and endowment premium added together equal the premium for a whole life policy for the same amount of life insurance. The policies are participating, and contemplate the payment of an equitable surrender value in case of lapse. They make special provisions in respect to the distribution of the profits by way of dividend; and this controversy turns on the meaning of those provisions. Let us examine them.

In the first place the policy-holders stipulate and the company agrees that the dividend surplus in which all the policies issued in that policy year may be entitled to share, shall be apportioned and paid in cash to the surviving and persisting policy-holders at the end of ten full years. Tins is clearly stated in the first and fifth clauses of the conditions contained in the policy. Second, each policy-holder, by the stipulation in clause four, foregoes his right to an equitable surrender value during the dividend period, so that in case his policy lapses, the whole amount of payments on that policy held by the company in reserve, remains in its hands. Third, each policy-holder stipulates, in clause five, that any share of the dividend surplus which his policy might be entitled to during the dividend period, shall be apportioned among the surviving and persisting policy-holders. The other conditions are not especially pertinent to the disputed question. This disposition of the surplus the policy calls “ the reserve dividend plan; ” and it calls the fund accumulated through these stipulations of the policy-holders, “ the reserve dividend fund.”

The practical effect of these provisions is patent. The policies of each year constitute a class by themselves, and their contributions must be treated separately so far as consistent with the necessities and obligations of mutual insurance, in order to give effect to the provisions. The policies in force at the .end of ten years will be entitled to the whole dividend fund, which may have been fed not only by the annual overpayments on their own policies increased by compound interest, but also by the overpayments of those who have died, made up to the time of death, and of those whose policies have lapsed, and by overpayments of holders of lapsed policies to the fund held in reserve to meet the future cost of insurance. As these policies stipulate that they shall receive no surrender value during the dividend period, the whole reserve or unexpended portion of the premium remains in the hands of the company, and the gains upon a lapse are not depleted, as in other cases, by payment of a surrender value. And this practical effect of the policy stipulations is advertised by the defendant in an indorsement printed on the back of some of the policies, which states that the credits to the reserve dividend will be, “the total gains from the following sources, viz: 1. The surplus overpayments on all policies surviving said class period. 2. The surplus over-payments on all policies becoming a claim by death before the completion of said period. 3. The surplus overpayments on all policies lapsing by their terms before the completion of said period. 4. The total reserve on all policies lapsing before the completion of said period. 6. The interest upon such credits at the average rate earned by the company.” Under the first item is a note explaining how overpayments of premiums arise, i. e. from larger rate of interest, etc., but excluding the gains from lapsed policies, which are contributory to the fund representing overpayments as truly as the other matters named. The gains from lapsed policies are left to be stated as a separate credit; this, because no surrender value is paid according to the stipulation of the policies ; so that upon lapse all payments made to provide for future cost of insurance and held in reserve for that purpose, remain in the hands of the company. The “ gain from the total reserve on all policies lapsing,” is therefore deemed of sufficient importance to be named as a separate credit, instead of being included under gains from overpayments of premiums, as it would have been except for the retention of surrender values.' And a note under item four explains how the reserve, the whole of which remains in the hands of the company upon a lapse as a possible source of gain, is accumulated. The policy is a term life and endowment policy, insuring life for one amount and an endowment for another; but the reserve will be accumulated “as for a whole life policy for a like amount of insurance,” calculated according to the rule adopted by the State insurance department. The total reserve on all lapsed policies is retained in the company’s assets, and is a source of gain arising chiefly from the stipulations respecting surrender values.

TMs advertisement is evidently framed for the purpose of presenting the practical effect of the policy in a way suggestive of the largest possibilities of gain. It is, however, another form of saying: “ The premiums paid during ten years on all reserve dividend policies issued this year, will be improved at compound interest and applied to the payment of the cost of insurance and expenses of management chargeable to the policies; and at the end of ten years the surplus on hand, after providing for the future cost of insurance on continuing policies, will be apportioned by way of cash dividend to the policies then in force.”

This is the plain meaning of the policy, by which the obligations of the company and the rights of the insured must be determined. It is the only meaning consistent with the terms of the policy and the fundamental condition of mutual insurance, that dividends must be derived from overpayments of policy-holders and that there can be no dividend, annual or decennial, unless at the time there is a surplus in the hands of the company.

The plaintiffs claim a widely different meaning, viz“ That the usual dividends and the total reserves on lapsed policies should have been credited to a fund yearly, that this sum should have been kept at interest and not resorted to for losses, death claims or expenses, and that it should have been divided at the end of the reserve dividend period among the survivors of the class.”

So far as this claim relates to bookkeeping only, it is immaterial. The company may change its methods of entries and computation at any time. The essential ’ feature is in the plaintiffs’ claim that the policies did not simply provide for a decennial dividend, but that the defendant promised to incur certain fixed liabilities, and at the end of ten years to divide the amount of those liabilities.

A yearly dividend has its advantages: an uncertain equitable interest in a fluctuating fund is converted into legal ownership of a definite sum. A decennial dividend has its advantages : the rapidly increasing surplus is an additional guaranty against adverse experience of one or more years, and the share of the policy-holder accumulates at compound interest. But the advantages of the two dividends cannot be combined; the certain enjoyment of the annual is inconsistent with the uncertain possibilities of the decennial. A combination of immediate consumption with continued possession is impossible. The plaintiffs’ claim that the company in providing for a decennial dividend promised to declare ten annual dividends, is baseless. It did not even promise a decennial dividend. Dividend implies surplus, and surplus is free; if mortgaged for liabilities it is not surplus. And the policy in express terms forbids an annual dividend. “ This policy shall not be entitled to any share in the dividend surplus of said company other than at the expiration of ten full years from the date thereof.” How is it possible to extract from these policies a promise to declare annual dividends, when every one of them explicitly excludes its right to any share in the surplus except at the end of ten years ? It is true, however, that if the business of the company were prosperous during the ten years, the dividend then made would be equivalent to the usual dividends,— i. e. those that would have been made had annual dividends been provided for—kept at interest. Assuming that prosperity, the decennial dividend may properly be calculated in this way.

But the plaintiffs rely mainly on the other part of their claim, viz: that “ the total reserves on lapsed policies should have been credited to a fund yearly; ” meaning that the company promised that upon the lapsing of each policy during the dividend period, it would become the debtor of the class policy-holders for a sum equal to the reserve value of that policy, that it would pay compound interest upon this debt, and at the end of the period would pay over the whole amount. This claim is stated by the plaintiffs’ counsel in various forms: “ In no case (of lapse) did the obligation to keep up the reserve of the class policy-holder cease to be a liability of the company during the class period, only the payee was changed.” And again: “ Until it had provided for the payment of such reserves (including reserves on lapsed policies) it had no surplus fund; having no surplus fund it could not declare dividends.”

Such a contract as this is unheard of. It is impossible of execution. It cannot he found in the policy, and is inconsistent with the terms of the policy. Indeed the plaintiffs do not claim to find such a contract in the policy. Their claim is that it may he inferred from the contents of a certain canvassing pamphlet entitled “ Key to the Reserve Dividend Plan,” written by one Stewart for the exclusive use of the agents of the Widows & Orphans Benefit Life Ins. Co., and that the plan of insurance contained in the defendant’s policy is set forth and expressed on pages 10 and 11 of said hook, and as so expressed had been adopted by the defendant prior to the issue of the policies. The trial court has found as a fact that this pamphlet was not adopted by the defendant. It was prepared and published for the exclusive use of the agents of the Widows & Orphans Co., and at the time the first of the policies in suit was issued that company was transacting business through its own agents. The pamphlet, after the manner of insurance literature, attacks the defendant and other companies named, as incapable of carrying on this plan of insurance, and attacks the standing of the defendant and other companies named. It seems hardly credible that the defendant in issuing these policies as its own peculiar plan of insurance, should have sanctioned the distribution and use of such a pamphlet of another company.

The plaintiffs, however, claim that upon the special facts found the adoption of this pamphlet is a necessary conclusion of law. For the purpose of this decision we will assume that the plaintiffs’ claim is correct, and that the defendant did authorize the use of this pamphlet as an explanation of the plan of insurance contained in its policies. It must be remembered, however, that a hook of this kind is not the policy, hut is simply explanatory of the policy; it must be read in connection with the terms of the policy, and when its language may be construed as consistent with those terms, a different and inconsistent construction cannot he given. We think any fair construction of this pamphlet is consistent with, the meaning of the policy as expressed in its language. It would be a waste of time to sift in detail the loose phraseology of this book covering some 120 pages, or to compare it with the language of companion books covering over 100 pages more, written by the same author, for the same purpose and at the same time, and clearly proper to be considered in ascertaining his meaning. The true meaning of the pamphlet appears with sufficient clearness in the extract from pages 10 and 11, on which the plaintiffs mainly rely. The author’s comments on the Reserve Dividend Plan are contained in some thirty paragraphs placed under “ catch ” headings, without much reference to clearness or connection. Among these is “ A simple view of the reserve dividend plan.” He says: “The company in issuing any policy guarantee two things: the amount insured according to its terms, and an equitable share in all the surplus and earnings. The amount insured they pay after it becomes a claim. The surplus they divide by way of a cash dividend at the end of every year.” Here is a clear statement of the whole promise of the company in any policy. The death claim is a liability that must be paid. The dividend is an apportionment of surplus. This is true of the reserve policies as well as of all others. Wherein they differ is this: “ The reserve policies, however, in forming a class, stipulate among themselves that all dividends allowed upon their policies for ten years, shall be retained by the company, invested at the average rate of interest obtained on their investments, and finally divided at the close of the ten years among the living members only.” This stipulation is contained in the policy, as follows: “ This policy shall not be entitled to any share in the dividend surplus of said company other than at” the end of ten years, when the dividend fund shall be divided among the policyholders then living. He goes on: “ It is further stipulated that in case any member fails to keep his policy in force for the ten years he shall forfeit his reserve for the benefit of his class, which sum shall be kept at interest by the company and divided in like manner.” This stipulation is contained in the policy, as follows: “An equitable surrender value will be allowed in purchase of this policy only at such time as a dividend may be due and payable upon it by its terms.” A policy-holder could stipulate to forego the surrender value of his policy, but whatever of reserve there may be beyond this goes upon a lapse, by force of the insurance contract, to the free assets of the company; yet practically by force of this stipulation the whole amount held in reserve goes to those assets. The phrase “forfeits his reserve,” etc., is accurate enough for a “simple view.” Mr. Stewart goes on: “ It follows then (follows from the stipulations of the policyholders) that for every class formed a fund will accumulate from five sources, as follows: ” (stating the sources substantially as stated on the policies).

The significance of this language lies in the fact that a “ dividend ” is defined as an equitable share in all the surplus and earnings; that the reserve policies differ from others only by reason of the stipulations contained in the policies themselves, and that the fund for the reserve dividend accumulates in a special way only by reason of these stipulations. This accumulation is the same as that mentioned on the policies, namely “the total gains” from all sources. And the final conclusion of Stewart is: “ It is plain, therefore, that the dividend to the existing members at the close of the class must be considerably larger than the dividend accumulating in the ordinarj1- way.” The dividend to the existing members, fed from the five sources named, is an equitable share of the surplus; in this respect precisely like the dividend accumulating in the ordinary way, the only difference being that the surplus is liable to be considerably larger. This language, in connection with that which goes before, is conclusive that the “ reserve dividend ” Stewart is talking about is a “dividend”—an equitable share of surplus—and not a payment. This fundamental assumption that the reserve dividend is a “ dividend ” implying surplus and derived only from profits, runs through the whole book and fixes its meaning. He starts with a statement that the plan is a division of “profits.” He states that it “differs from all others in that it recognizes the sources whence the surplus arises and returns to each contributor the exact amount contributed.” Among these sources is the “ gain from lapses,” and it is “ this surplus ” which “ is divided among the policyholders in an equitable proportion.” He calls special attention to the fact that this surplus accumulating for ten years serves as a sort of guaranty capital in addition to the re-insurance fund, and thus furnishes a “security beyond question ” for the payment of the amounts insured. In the companion book, “Key to the Reserve Endowment Plan,” he states that the reserve dividend is a “ question of surplus, its accumulation and divisionand that “ the reserve dividend is a question of profits only;” that the realization of profit depends on assumptions by way of estimate only; that the company does not guaranty profit and assumes no liability in respect to it. In the companion book prepared for the defendant, about the time it commenced this kind of insurance, he states the sources of the reserve dividend, as “ the profits of favorable mortality, the savings in expense, the gain by interest and investments, and the profits from lapses.” And in describing the characteristic provisions plainly expressed in the defendant’s policy, he refers to their reserve dividend feature as “ its guaranteed equitable participation in the company’s surplus in periods elected by the policy-holder.” The more carefully this book is examined, the more clearly this meaning appears. But it appears with sufficient certainty from the statements that are the foundation of “A simple view of the reserve dividend plan,” on pages 10 and 11, viz.,—a dividend is an equitable share of surplus; the reserve policies contain certain stipulations between themselves, by which the share of those who die or whose policies lapse goes to increase the share of those who live and persist; the reserve dividend fund is the result of these stipulations; at jthe end of ten years á dividend, i. e. an apportionment of existing surplus, is made to existing policies. This is the substance of the whole book; the rest is ornamentation. There is some unfairness to the author, as well as a touch of the humorous, in treating a drummer’s pamphlet which taxes the resources of fancy and exaggeration in indiscriminate praise of a general scheme of insurance, as the responsible explanation of the terms of a written contract.

Stewart says the persisting policy-holders are entitled to share in a surplus; the plaintiffs claim they are entitled to the payment of a debt. Stewart says the company promised • to distribute what it has; the plaintiffs claim a further promise to pay a sum it has not. Whether we read these policies by themselves, or in connection with the “ Key to the Reserve Dividend Plan,” as an authorized explanation, the result is the same. There is no foundation for the plaintiffs’ claim; and upon our interpretation of the policies they cannot maintain this action.

There is another view of these contracts that may be material. All that distinguishes ordinary life insurance from a wagering contract, is the theory of protection against damage that may be suffered through another’s death. This protection may be purchased by the insured in behalf of his own family, or of those he sees fit to make his beneficiaries; it may be purchased by one on his own account where he may suffer damage from another’s death by reason of kinship, the relation of creditor, or other insurable interest. But when this element of protection is entirely eliminated, the insurance is a wager and the contract is void. Cronin v. Vermont Life Ins. Co., Supreme Court of R. I., 40 Atl. Rep. 497. In the present case the policy-holders stipulate between themselves that the surrender value of each policy lapsing, which represents payments made in behalf of the beneficiary, shall go to benefit other policy-holders living at a certain time, who are total strangers to the policy and the insured. This is a mutual wager upon the chances of life. There is no conceivable element of protection. The sole purpose of the bet is personal profit. It is the risk of what is due to each in the case of a lapse, for the chance of winning what is due to others. It is correctly described by the plaintiffs’ counsel as “ the chance to speculate on his chances of surviving the other members.” On this ground these policies were urged upon the public, by appeals to the gambling instinct, claiming, as stated in the Stewart pamphlet, that “ Risk is the condition of success.” The only way of evading the invalidity of such a contract is by the claim that the policyholders in fact wager nothing, that all payments of premiums belong to the company, including those applied to maintain a reserve, and the policy-holders are not entitled to any particular sum, but only to an equitable proportion" of the excess of assets over liabilities at the time of dividend. We do not pass upon the sufficiency of this claim. But if the claim of the plaintiffs be true; if upon each lapse a sum equal in amount to the reserye value of the policy lapsing becomes a liability of the company which it must pay to the surviving policy-holders; then all doubt as to the gaming nature of the transaction vanishes. The pool thus created is composed of definite sums of money of which the company is stakeholder, under an agreement to divide these sums among the winners, who are to be determined by the chances of life. If, therefore, the plaintiffs could maintain their claim, the result would be the dismissal of their complaint. Courts of equity will not apportion the spoils of gamblers.

A number of assignments of error in rulings of the court are well taken. The most material occurred in the examination of experts, so-called. Mr. Whiting was asked in reference to the “ Key to the Reserve Dividend Plan,” being a book claimed as the defendant’s authorized statement of the contract in dispute: “ Is there anything in that book that requires, anything in that book, or in that plan of insurance, that requires that there should be constituted and set aside,” etc. ? In respect to the indorsement on some of the policies in suit, Mr. Whiting was asked: “ I wish you would state a little at length your opinion in reference to that language, and the reasons which are at the bottom of it.” And he was further asked, in reference to the indorsement, whether it was inconsistent with a printed statement of the defendant, in evidence, as to the accumulation of its dividend fund. Mr. Homans was asked in reference to the “ Key to the Reserve Dividend Fund ”: “ From what fund are the expenses and death claims made payable by the terms of that book ? ” And also: “ Do you find anything in the text of that book, or in the illustrative tables, that indicates the existence of any general fund,” etc. ? He was asked the same questions about the indorsement that were put to Mr. Whiting. All these questions were admitted against the plaintiffs’ objection, and exceptions were duly taken. Others of a similar character, not necessary to detail, were admitted.

This testimony was inadmissible. The meaning and legal effect of the policy and of the document claimed as referred to by the policy, was a question of law for the court. Experts may be called to define terms of art, to explain the principles of their science, where such principles are necessary to be understood, to state the condition and practice of their business, when material; but not to instruct the court as to the meaning of a contract. Sometimes a definition of a term or explanation of a principle may be decisive of the meaning of a document, but it is for the court to draw the conclusion ; the opinion of any one else is immaterial. Here opinions were received as to the very point at issue in the case.

Ordinarily a new trial will not be granted on account of errors, where it appears from the record that a new trial cannot lawfully produce a different result. But this is a matter of discretion. In the present ease the trial court seems to have found the meaning of the policy as a fact inferred from documentary and oral testimony. The opinions erroneously received from witnesses learned in insurance matters, must have been given weight, possibly controlling weight, in reaching the conclusion, which was the basis of the judgment. Under the circumstances of this ease a majority of the court think our discretion should be exercised in setting aside a judgment so reached.

In a former appeal in this case the defendant assigned 167 errors; in the present appeal the plaintiff assigns 326 errors. There was no just ground in either appeal for such prolixity.

There is error and the judgment of the Superior Court is set aside.

In this opinion Torrance and Hall, Js., concurred.